Anderson Clayton & Co. v. Alanthus Corp.
| Decision Date | 10 January 1983 |
| Citation | 91 A.D.2d 985,457 N.Y.S.2d 578 |
| Court | New York Supreme Court — Appellate Division |
| Parties | ANDERSON CLAYTON & CO., Appellant-Respondent, v. ALANTHUS CORPORATION, Respondent-Appellant, et al., Defendants. |
John P. D'Ambrosio, P.C., Elmsford, for appellant-respondent.
Gordon, Hurwitz, Butowsky, Baker, Weitzen & Shalov, New York City (Steven A. Coploff, New York City, of counsel), for respondent-appellant.
Before DAMIANI, J.P., and O'CONNOR, WEINSTEIN and BROWN, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover damages for breach of contract, plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County, dated April 29, 1982, as denied the branch of its motion which was for partial summary judgment as against defendant Alanthus Corporation, and said defendant cross-appeals from so much of the same order as denied its cross motion for summary judgment.
Order modified, on the law, by deleting the provision denying that branch of plaintiff's motion which was for partial summary judgment against defendant Alanthus Corporation and substituting a provision granting said branch of the motion. As so modified, order affirmed insofar as appealed from, with $50 costs and disbursements to plaintiff.
Although the issue of substantial performance is usually one of fact, "if the inferences are certain, the question involves only a matter of law and is to be decided by the court" (22 N.Y.Jur.2d, Contracts, § 320, pp. 198-199; see Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239, 129 N.E. 889, mot. for rearg. den. 230 N.Y. 656, 130 N.E. 933; see, also, Travelers Ind. Co. v. Buffalo Motor & Generator Corp., 58 A.D.2d 978, 397 N.Y.S.2d 257). At bar, the primary purpose of the contract was fulfilled. The breaches alleged by defendant Alanthus are trivial in nature, particularly...
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